A forum for critical analysis of international issues and developments of particular relevance to the sustainable political and socio-economic development of Overseas Countries and Territories (OCTs).

07 April 2008

International Dimension of a USVI Constitution

The United States Virgin Islands, as a U.S. - administered unincorporated territory in the Caribbean has embarked on its Fifth Constitutional Convention to draft a local constitution to replace the Revised Organic Act of 1954 which is a federal law that serves in lieu of a constitution. The Revised Act updated the original Organic Act of 1936. The system of governance under which the territory exists is underpinned by the Territorial Clause of the United States Constitution which provides in Article 3 that the US Congress “shall make all needful rules for territory or other property of the United States,” and thus may legislate for the territories it administers.

Other US - administered territories in the Caribbean and Pacific regions have addressed their constitutional advancement to varying degrees. Puerto Rico drafted a constitution in 1952 based on a commonwealth political status which, in effect, maintained the applicability of the Territorial Clause. The Northern Mariana Islands in 1976 approved a significantly more autonomous commonwealth arrangement and adopted a constitution based on that status. The territory of Guam adopted by referendum a similar autonomous commonwealth arrangement to its neighboring Marianas, but the proposal was not accepted by the US Congress during a process which took up much of the decade of the 1990s. Thus, Guam also is organized via an organic act. American Samoa completed its constitution in 1960, providing for the retention of many local customs and governance structures. An American Samoa political status commission in 2007 has made certain recommendations regarding the present arrangement.

Since the enactment of the US Virgin Islands Revised Organic Act of 1954, constitutional advancement has been attained through ad hoc Congressional legislation, which included in 1968 the authority to replace the US-appointed governor with an elected governor, among other incremental changes. In 1971, one year after the election of the first governor, a constitutional convention was authorized, without regard to US Congressional authorization, with a draft constitution adopted in 1972. The document was not adopted in a local referendum, however, because of a less than required voter turn-out.

In 1976, Congress adopted legislation authorizing the Territory to draft its own constitution recognizing the sovereignty of the United States over the islands. A constitutional convention was elected the following year, and in 1979 the draft constitution emanating from the convention was rejected in referendum. A subsequent convention in 1980 also produced a document which failed to be adopted by referendum in 1981.

Several years prior, in 1979, the US President Jimmy Carter had completed a policy review of the governance of the US territories conducted by an Inter-Agency Territorial Policy Review Task Force chaired by the US Department of Interior which maintains administrative oversight of the US – administered territories. One of the conclusions of the policy review was the authorization for the territories to make recommendations or modifications to the prevailing political status. Federal impetus to this process, however, did not materialize as a result of the 1980 US presidential elections which resulted in the change of US government administration from President Carter to President Ronald Reagan.Nevertheless, the territorial government proceeded to establish its first political status commission in 1980, consistent with the Carter Administration authorization, to study potential changes to the existing political status arrangement with the aim “to negotiate the relationship of the (US) Virgin Islands…and to provide for popular ratification of a territorial-federal relationship.” The local legislation authorizing the first US Virgin Islands Status Commission made an important distinction between the 1976 federal law authorizing the creation of constitutional conventions which were limited to the prevailing political status arrangement, and the Carter Administration policy recommendations authorizing the territories to address the broader picture of political status modernization.

This first Status Commission existed until 1982, and produced important recommendations, several of which were adopted by the territorial government at that time। Although the public education phase of its work was not completed, the Commission did raise the consciousness of the electorate of that period as to the distinction and inter-relationship between the constitution and the political status processes.

Accordingly, during the 1982 general election, the electorate decided in a non-binding referendum issue that the status issue should be addressed before writing a constitution. For procedural reasons, however, legislation to convene a fifth constitutional convention was introduced instead, and despite recommendations to reduce the original cost of the convention, the Legislature did not adopt the measure.

In 1983, a number of alternative mechanisms were considered to address the political status issue. By 1984, the Fifteenth Legislature of the US Virgin Islands created a Select Committee on Status and Federal Relations which also contributed to the growing body of work on political evolution. The subsequent legislature did not re-establish the Select Committee, however. By 1988, legislation was adopted to create a broader Commission on Status and Federal Relations which added significantly to the body of work already done by the previous two bodies. A referendum on political status options was held in 1993 following an extensive public education campaign, but failed to garner the necessary fifty percent of the registered voters. The territory, therefore reverted to the status quo political status, by default.

No legislation was adopted addressing either the political status or local constitution issues in the intervening period, until 2004 when a bill was adopted to create a Fifth Constitutional Convention with the aim of a 2006 referendum on a draft document. This was later amended to give more time for the process to take shape. The present process requires that a draft constitution would be adopted by two-thirds vote of the thirty delegates of the Convention. The President of the Convention would then submit the draft to the Governor of the US Virgin Islands, who would, in turn, within ten (10) days submit the document to the President of the United States of America.

The President would have sixty (60) calendar days to review the document, with substantive input from the relevant U.S. federal departments, in particular Interior and Justice, before transmitting it to the Congress of the United States which would have a period of sixty (60) legislative days for its review. Hearings on the draft would most probably be held in committees of the US House of Representatives and the Senate where representatives of the Constitutional Convention would introduce the draft and answer any queries which may arise. It is also possible that other selected individuals could make their views known to the Congress during the hearings. After the congressional review period, and any amendments which may be made to the text by the Congress, the draft document would be returned to the US Virgin Islands for submission to the voters in a referendum.

In the course of the public sessions of the Fifth Constitutional Convention, a presentation was made on the International Dimension of a US Virgin Islands Constitution by Dr. Carlyle Corbin, international advisor on governance and former US Virgin Islands Minister of State for External Affairs. The presentation examined the relevant international treaties and agreements relating to the constitutional development of the territory, as well as relevant resolutions of the United Nations General Assembly. The presentation also covered a number of human rights treaties in relation to the drafting by the Convention of its bill of rights. Of particular note was reference to the Treaty of Cession which transferred the islands from Danish to US jurisdiction in 1917, particularly as related to the disposition of the inhabitants of the islands at the transfer. The paper goes on to review specific language included in previous draft constitutions of the US Virgin Islands which remain relevant to the present exercise. The paper goes on to examine specific competencies contained in the constitutions of American Samoa, the Northern Mariana Islands and Puerto Rico which might be useful in the contemporary US Virgin Islands process. The presentation also makes reference to key provisions of the new constitution which went into force in the British Virgin Islands in 2007, specifically as related to cultural and national identity. The presentation concludes with the important distinction between the drafting of a constitution based on the prevailing dependency status, and the process of self-determination which provides non-territorial options of political equality.